University of Miami Law School
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University of Miami Inter-American Law Review
10-1-2012
Haiti: A Failed State? Democratic Process and OAS
Intervention
Annabelle L. Torgman
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Recommended Citation
Annabelle L. Torgman, Haiti: A Failed State? Democratic Process and OAS Intervention, 44 U. Miami Inter-Am. L. Rev. 113 (2012)
Available at: http://repository.law.miami.edu/umialr/vol44/iss1/7
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Haiti: A Failed State? Democratic Process
and OAS Intervention
Annabelle L. Torgman*
Politics is not a dirty necessity; it is a moral activity that
can be corrupted, and the collective corruption of the minds
of political actors leads to the failure of the state.
–Zephyr Teachout.1
I. INTRODUCTION
Graham Greene, in response to criticism of his novel, “Les
Comedians,” openly admitted that he was not concerned about the
authenticity of his characters so long as Haiti, Doctor Duvaliar,
and the Tontons Macoute, were “real enough.”2 The novel, set in a
Port-au-Prince hotel in the 1960s, portrays both the island’s
unique and vibrant culture, and simultaneously, its political
unrest. Fifty years after the novel’s first publication, Haiti has yet
to progress much beyond the country depicted in those pages. The
2010 earthquake destroyed the landmarks the novel described,
and the power of the Tontons, Macoutes, and Duvaliers has dissipated; the gangs of Cité Soleil, however, still roam the capital’s
streets, and violence remains a steady presence in the everyday
lives of Haitians.3 Haiti’s future—though uncertain—relies heavily on the Organization of American States (“OAS”) involvement
and its continued provision of foreign aid.
The island nation faced a massive cholera outbreak in 2010,
following the devastating earthquake that decimated many populated areas. At most recent count, approximately 6,500 Haitians
have been killed by the water-borne disease.4 Many Haitians
* J.D., Magna Cum Laude from the University of Miami School of Law, May
2013. Currently serving as the law clerk to the Honorable Laurel M. Isicoff in the U.S.
Bankruptcy Court for the Southern District of Florida. I would like to thank the many
professors and the dedicated editorial board and staff of the Inter-American Law
Review for their assistance and hard work.
1. Zephyr Teachout, The Anti-Corruption Principle, 94 CORNELL L. REV. 341, 375
(2009).
2. John Bowen, The Comedians, N.Y. TIMES, Jan. 23, 1966, http://www.nytimes.
com/1966/01/23/books/greene66-comedians.html.
3. Duncan Campbell, Drinking, Dancing, and Death, THE GUARDIAN (Dec. 16,
2005), http://www.guardian.co.uk/books/2005/dec/17/grahamgreene.
4. Haiti Cholera Victims Demand UN Compensation, BBC (Nov. 9, 2007), http://
www.bbc.co.uk/news/world-latin-america-15648110.
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oppose United States intervention and have expressed their opposition through a recent lawsuit against the United Nations
brought by 5,000 Haitian victims of the cholera epidemic.5 Unfortunately, the inability to independently and effectively combat
this cholera epidemic is merely one example of the many systemic
hurdles Haiti faces today. In addition to low literacy rates,6 poverty,7 and increasing violence,8 political corruption remains front
and center as a serious impediment to Haiti’s ability to progress
beyond Papa Doc’s reign.9
Haiti’s most recent presidential election, seen by many as a
farce, excluded the country’s largest political party, Fanmi
Lavalas, and other candidates for unjustified reasons. In a situation analogous to holding an American election without a Republican Party candidate, the absence of the Fanmi Lavalas party
raised claims of corruption.10 Foreign intervention regarding the
election was minimal and investigations of corruption were
inconsequential.11
During a similar election scandal in Venezuela, more than
800 Venezuelan politicians have been declared “inhabilitados,” or
disqualified by Chávez’s comptroller general since 2007 and subsequently disqualified from seeking public office.12 Leopoldo
López , along with other excluded politicians, took their case to the
Inter-American Court of Human Rights (“Inter-American Court”)
claiming that their exclusions were contrary to both the Venezuelan Constitution and the American Convention on Human
5. Moni Basu, Haiti Cholera Victims Demand U.N. Compensation, CNN (Nov. 8,
2011), http://www.cnn.com/2011/11/08/world/americas/haiti-cholera-lawsuit/?
hpt=he_c2.
6. CIA, Haiti, THE WORLD FACTBOOK, https://www.cia.gov/library/publications/
the-world-factbook/geos/ha.html (last visited Apr. 1, 2013).
7. Id.
8. AMNESTY INTERNATIONAL, Haiti: Sexual Violence Against Women Increasing
(Jan. 6, 2011), http://www.amnesty.org/en/news-and-updates/report/haiti-sexualviolence-against-women-increasing-2011-01-06.
9. TRANSPARENCY INTERNATIONAL, CORRUPTION PERCEPTION INDEX 2-3 (2010),
available at http://www.transparency.org/policy_research/surveys_indices/cpi/2010/
results. Haiti scored a 2.2 on a sliding scale from 0-10, or highly corrupt to very clean.
Id.
10. Marc Weisbrot, Haiti’s Election: A Travesty of Democracy, The Guardian (May
19, 2013), http://www.theguardian.com/commentisfree/cifamerica/2011/jan/10/haitioas-election-runoff.
11. Id.
12. Girish Gupta, Venezuela’s Exclusion of anti-Chávez Candidates Faces a
Challenge, TIME (Mar. 13, 2011), http://www.time.com/time/world/article/
0,8599,2058180,00.html.
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Rights.13 In September 2011, the Court ruled the ban a violation
of Article 23 of the American Convention on Human Rights and
likewise ruled that Venezuela must allow López to run for office.14
A month later the Venezuelan Supreme Court disregarded the
binding decision.15
This article analyzes Haiti and its uncertain future as compared to the functional democracy in a somewhat similarly situated Venezuela. The analysis relies heavily on the idea that Haiti,
as a “failed state,”16 requires more OAS intervention, especially as
compared to a seemingly functional Venezuelan democracy. The
concept of “failed state” offers an alternative approach to international law and the manner in which the law responds to democracies in crisis. As this article will discuss, the fact that a country is
labeled a “failed state” triggers a unique response within international law, which may require additional attention and resources
from outside aid. While international law traditionally leaves each
state to govern its constitution and itself, legal norms increasingly address matters of state and may advocate further involvement by international players.17
A fair election is instrumental to a country’s survival, yet it is
not always realized. Due to the importance of an election as the
modern democratic mechanism for choosing a country’s leader,
failed states require more OAS oversight and assistance during
the election process. A fair and democratic election is vital to
Haiti’s survival, but such an election may have come at the
expense of Haitian lives. While Venezuelan politicians brought
their claims to light via the Inter-American Court, Haitians
instead resorted to violence in an effort to pressure the Election
Council into providing a more fair and representative democratic
election.18
Part II explores Haiti’s history, from colonialism to—arguably—democracy. Haiti’s history plays a significant role in its
inability to adhere to a democratic process and its tendency to
13. Id.
14. Venezuela: Supreme Court Disregards Rights in Election Case, HUMAN RIGHTS
WATCH (Oct. 18, 2011), http://www.hrw.org/news/2011/10/18/venezuela-supremecourt-disregards-rights-election-case.
15. Id.
16. See generally Mario Silva, Island in Distress: State Failure in Haiti, 23 Fla. J.
Int’l L. 49 (2011).
17. Stephen J. Schnably, Emerging Int’l Law Constraints on Constitutional
Structure and Revision: A Preliminary Appraisal, 62 U. MIAMI L. REV. 417, 417
(2008).
18. Silva, supra note 16 at 57.
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resort to violence. Part III examines ballot exclusion in Haiti and
also in Venezuela, comparing the OAS’ role in both countries. Part
IV analyzes the concept of a failed state and its implications in
accordance with Article 20 of the Inter-American Democratic
Charter, which orders action upon “unconstitutional alterations of
the constitutional regime.”19 Part V comments on the future implications for Haiti as a failed state.
II. HAITI’S CONCEPTION
AND
STRUGGLE
Columbus’s voyage to the Western world in 1492 was one of
the Continent’s first visits to Hispaniola and the New World.20
After years of exploiting the indigenous population, additional
explorers under the color of the Spanish flag began importing African slaves to make up for the dwindling labor supply decimated by
small pox and over-exhaustive labor.21 After a series of attacks by
the French, Spain ceded the western part of Hispaniola—what is
now Haiti—to the French in the 1697 Treaty of Ryswick.22
Renamed St. Domingue, the region became the richest Caribbean
colony and one of the richest colonies in the 18th century French
empire owing to its centrality to both the slave trade and the mercantile agriculture system developing in the New World.23 Highly
profitable plantations flourished in one of the New World’s harshest slave systems. Perhaps most unfortunately, “this era marked
the apex of Haiti’s economic development.”24
In 1791, violence erupted during Haiti’s first war for independence. After thirteen years of bloody warfare, St. Domingue finally
defeated Napoleon’s army and on January 1, 1804, established
independence from France and renamed itself “Haiti.”25 The new
nation had been born of violence and baptized in the bloody overthrow of its continental overlords, foreshadowing the legacy of violent regime change that would dominate Haitian political history.
Although Haiti occupied Santo Domingo, the eastern Spanishspeaking half of Hispaniola, Santo Domingo broke away from
19. Inter-American Democratic Charter art. 20, Sept. 11, 2001, 40 I.L.M. 1289,
available at http://www.oas.org/en/democratic-charter/pdf/demcharter_en.pdf.
20. PHILIPPE R. GIRARD, CLINTON IN HAITI: THE 1994 U.S. INVASION OF HAITI 9
(2004).
21. Id.
22. Id.
23. Id.
24. Id. at 9-10.
25. Id. at 10.
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Haiti in 1844 to become the Dominican Republic.26
Owning largely to the triangular trade of slaves, crops, and
manufactured goods between West Africa, the New World, and the
Continental powers, Haiti emerged as a distinctly black, officially
French-speaking republic in a white Spanish and English-speaking area dominated by slave owners and colonists. Given the
nation’s bloody beginnings, it is not surprising that violence
erupted mere months after its independence, as black revolutionary leader Jean-Jacques Dessalines ordered a massacre of all
whites in the country.27 This ultimately counter-productive massacre eliminated Haiti’s skilled class and devastated the country’s
economic potential at a time when it could ill-afford the setback.28
Despite actively assisting other Latin American countries with
independence movements, Haiti was excluded from the Western
hemisphere’s first regional meeting of independent nations in
Panama in 1826, and was not recognized by the U.S. until 1862.29
The French refused to recognize Haiti’s independence until 1825,
when Haiti agreed to pay 150 million francs indemnity.30
Perhaps predictably, the Haitian democracy remained unstable from 1843 to 1915, with 22 changes of government and 102
revolts, civil wars, and various other impromptu revolutions.31
Poverty became largely self-perpetuating as Haitians, desperate
for sources of income and energy, began razing the island’s forests.32 The deforestation diminished acres upon acres of potentially arable farming land.33 Political unrest and corruption also
pushed away potential investors.34 The country’s instability eventually led to U.S. occupation in 1915,35 when American President
Wilson authorized the landing of nearly 350 Marines to secure the
interests of U.S. corporations located on or doing business with
the island.36 Although the occupying forces built hospitals, roads
26. U.S. DEP’T OF STATE, BACKGROUND NOTES: HAITI (Oct. 19, 2011), available at
http://www.state.gov/outofdate/bgn/haiti/191075.htm.
27. GIRARD, supra note 20, at 10.
28. Id. at 11.
29. U.S. DEP’T OF STATE, supra note 26.
30. GIRARD, supra note 20, at 11. As an interesting footnote to this “recognition for
pay” framework, nearly 60 million of the original 150 million francs remains
outstanding to this day.
31. U.S. DEP’T OF STATE, supra note 26; see also GIRARD, supra note 20, at 12.
32. GIRARD, supra note 20, at 11.
33. Id. at 11.
34. Id. at 12.
35. Geoffrey Jones, Note, The Fifth Amendment Due Process Rights of Interdicted
Haitian Refugees, 21 HASTINGS CONST. L.Q. 1071 (1994).
36. Id. at 1078-83.
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and reorganized the country’s finances,37 little investment went
into improving quality of life or the efficacy of education.38 After 19
years of U.S. occupation, Haiti finally regained sovereign rule on
August 15, 1934 when President Roosevelt signed a letter of disengagement withdrawing American troops and leaving Haiti to its
own devices.39
Agricultural productivity in Haiti experienced sporadic success until the 1930s,40 when the American-born Great Depression
took a dramatic toll on the Haiti’s agricultural sector.41 Subsequent natural disaster aggravated the economic woes facing the
island, as severe flooding damaged the countryside and resulted in
poor harvests.42 Haiti’s then-President Stenio Joseph Vincent
developed a new constitution and extended his term using the
national plebiscite made famous in Napoleonic France.43 Although
the U.S. pressured Vincent to step down, his successor, Dumarias
Estime, also fell victim to the power of his office and sought to
escape the inevitable turnover of power that accompanies democratic elections.44 The army, frustrated by decades of power
accumulation by the executive branch, abandoned any pretense of
commitment to democratic transfer of power, successfully conducting a military coup and installing Colonel Paul Magloire as
the national head of state. Unfortunately, Magloire’s tenure was
also rife with corruption, directly creating the circumstances that
gave rise to Haitian’s first true despot, François Duvalier.45
Duvalier Era
François Duvalier, known as “Papa Doc,” rose to power in
37. GIRARD, supra note 20, at 12.
38. JOHN R. BALLARD, UPHOLDING DEMOCRACY: THE U.S. MILITARY CAMPAIGN IN
HAITI 1994-1997 28 (1998).
39. U.S. DEP’T OF STATE, supra note 26.
40. Id.
41. BALLARD, supra note 38, at 30.
42. Id.
43. Id. A plebiscite is a favorite tool of the totalitarian rule to legitimize their
control, as voters in a plebiscite are required to choose not between alternate regimes
or proposals but to confirm, or reject, a particular form of government or course of
action. Because plebiscites function by allowing the government to directly engage the
voting public, they provide the veneer of legitimacy. However, plebiscites permit the
despot to bypass many of the institutions of civil society that function as a check on
power—such as a political party—and thus can function without any opposing
political entities or dissenting blocks of voters. Indeed, an 1804 plebiscite in France
elected Napoleon emperor.
44. See id. at 30.
45. See id. at 33.
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1957.46 Synonymous with greed, corruption, and oppression,
Duvalier’s reign was the beginning of Haiti’s struggle with dictatorship.47 Wary of the existing military’s power, Papa Doc replaced
the entire Haitian military leadership with loyal followers, essentially creating his own private militia by recruiting criminals
practiced in intimidation and extortion.48 Papa Doc’s opponents
either fled the country or were murdered.49 After completing this
preliminary housekeeping, Papa Doc declared himself to be the
president of Haiti for life. One of his first acts as “president” was
to amended the constitution to concentrate his personal power and
eliminate any possibility of electoral turnover and thwarting any
hope for a democratic and legitimate form of government.50
Generally, a constitutional division of power exists between
governmental bodies so as “to limit the influence of any particular
class, to limit mob rule. . .to limit tyranny, but also to limit corruption.”51 As his aims ran counter to this general principle of constitutional rule, Duvalier began his reign by eliminating an entire
legislative house, vesting all legislative control in the resulting
unicameral body.52 To ensure that the presidency remained in his
family lineage, prior to his death in 1971 Duvalier named his son,
Jean Claude, nicknamed “Baby Doc,” Haitian president for life.53
To Duvalier’s benefit, the U.S. was too occupied with Cuba and
Fidel Castro to interfere with the disturbing concentration of
power occurring within Haiti. Thus unencumbered by international interference, Duvalier was able to hand-pick his successor
and vest control of the nation within the Duvalier family for a subsequent generation.54
III. HAITIAN ELECTIONS
During the period considered, “Duvalierism without
Duvalier,”55 generally considered to be 1986-87, numerous killings
46. Mario Silva, Island in Distress: State Failure in Haiti, 23 FLA. J. INT’L L. 49, 54
(2011).
47. Id. at 54.
48. BALLARD, supra note 38, at 33-34.
49. Silva, supra note 46, at 54-55.
50. Silva, supra note 46, at 55 (2011).
51. Zephyr Teachout, The Anti-Corruption Principle, 94 CORNELL L. REV. 341, 36970 (2009).
52. Id. at 55.
53. Silva, supra note 46, at 55.
54. BALLARD, supra note 38, at 35.
55. Jana Evans Braziel, Duvalier’s Ghosts: Race, Diaspora, and US Imperialism
in Haitian Literatures 179 (Univ. Press of Fla. 2010).
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ravaged the countryside, giving rise to a culture of fear. JeanBetrand Aristide himself, Haiti’s first post-Duvalier democratically-elected President, narrowly escaped death when the army
opened fire on him for his political activities.56 In March 1987,
Haiti’s 24th constitution was ratified, establishing a semi-presidential system (similar to modern-day France’s) designed to dilute
executive power and favor the status quo of the dominant classes.57 The army—who slaughtered about 150 people as they
waited to cast their ballots—cancelled the November elections on
polling day.58 Political instability and violence ensued: army
generals killed more civilians during the military’s first year in
power than Jean-Claude Duvalier’s government did in fifteen
years.59 While the U.S., as part of its efforts to promote democracy
by influencing elections in the Caribbean and Latin America,
pushed for a centrist representative in the election, the majority of
Haitians who showed up to the polls—turnout was estimated at
around 4% of the available electorate—chose a leftist, Leslie
Manigat, who supported social revolution and spoke out against
the army.60 Manigat was removed from office by the military
within his first four months in office.61
In 1990, international pressure led to a “relatively honest
presidential election” in Haiti, as turnout was over 50% of the
available electorate; approximately 67% of which supported the
new president, Aristide.62 Aristide appealed to the poor largely
because they viewed him as an activist against the Duvalier
regime. This marked the first democratic election to take place in
Haiti, nearly 200 years after it gained independence.63 The election was arguably an impressive leap toward democracy, as the
UN and the OAS both actively played a role in ensuring the dignity of the election process.64
Nonetheless, Aristide’s popularity did not last long as he
refused to recognize the National Front for Change and Democracy (“FNCD”), the electoral coalition that supported his presiden56. PETER HALLWARD, DAMMING THE FLOOD: HAITI, ARISTIDE, AND THE POLITICS OF
CONTAINMENT 27-28 (2007).
57. Id. at 28.
58. Id.
59. Id. at 29.
60. Id. at 29-32.
61. Id.
62. GIRARD, supra note 20, at 14; U.S. DEP’T OF STATE, supra note 26.
63. Irwin P. Stotzky, Constitutionalism and Democracy: An Essay in Honor of
Stanley N. Katz, 63 U. MIAMI L. REV. 83, 90 (2008).
64. Id.
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tial campaign, even though the FNCD controlled both chambers of
the reconstituted Haitian parliament. Upon realizing that Aristide preferred appointing activists from his popular movement to
government jobs rather than the career bureaucrats, members of
the FNCD turned against Aristide.65 Troubling issues with the
newly elected government were not limited to the opponents of
Aristide, however, as his documented use of mob violence to intimidate opponents began to characterize his tenure.66
Despite his initial popularity, Aristide’s fatal leadership
flaw—an inability to control the military—was revealed when
General Raoul Cedras launched a coup.67 A mere six months after
Aristide became President, Cedras’ violent military removed Aristide from power and forced him into exile in Venezuela, and later,
Washington D.C.68 The U.S. played an ambiguous role during and
after this turnover, officially denouncing Aristide as a “demonstrable killer,” “psychopath,” and a grave human rights abuser.
Although curiously, it would provide him with asylum years
later.69 Notwithstanding the ambivalent attitude of the Bush
administration, the U.S. secretly supported the 1991 coup.70
Although gross human rights violations had briefly stopped during Aristide’s term, his tenure was extremely detrimental to the
leftist political party, which arguably never fully recovered from
the 1991 coup.71
In the days and weeks following the coup, tyranny ensued;
the OAS responded by suspending economic relations, while the
U.S. responded by freezing Haiti’s accounts and imposing a trade
embargo.72 From October 1991 to September 1994, a de facto military regime governed Haiti, completely destroying any semblance
of democracy by torturing thousands of people and murdering
approximately 5,000 more.73 Presumably, the goal was to subjugate the Haitian population, harkening back to the fearful society
of the Duvalier era.74
The OAS’s activist role following the Haitian crisis in 1991
65.
66.
67.
68.
69.
70.
71.
72.
73.
74.
HALLWARD, supra note 56, at 36.
Silva, supra note 46, at 57.
Id.
Stotzky, supra note 63, at 90-91.
Id. at 104
See HALLWARD, supra note 56, at 40-41.
Id. at 44.
GIRARD, supra note 20, at 18-19.
Irwin P. Stotzky, The Truth About Haiti, 26 CONN. J. INT’L L. 1, 28 (2010).
Id. at 29.
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was due to the newly adopted Santiago Resolution, which called
for restoration of President Aristide’s constitutional authority.75
The OAS urged all states to isolate Haiti, commercially and diplomatically, instituting a hemisphere-wide embargo.76 Although
arguably aimed at a positive outcome, the OAS and UN embargoes had harmful long-term effects on the Haitian economy,
including exacerbation of the deforestation problem, as Haitians
stripped trees for charcoal to supplement their meager incomes.
Furthermore, the UN Security General believed the junta was a
threat to peace, as evidenced by its failure to implement an
agreed-upon solution.77 In 1994, the OAS took action over and
above the already existing embargo by prohibiting all commercial
flights to and from Haiti, freezing Haiti’s assets, and proscribing
financial dealings with Haiti.78
For its part, the Clinton administration emphasized devotion
to the democratic ideal in Haiti because of serious concerns about
human rights violations.79 In 1994, President Clinton guaranteed
Aristide’s return to Haiti in exchange for certain concessions,
including amnesty for those responsible for the coup and U.S. control of the nation’s police force.80 President Clinton then deployed
approximately 20,000 Marines to remove “a regime guilty of ‘executing children, raping women, killing priests and of ‘slaying
orphans.’”81 While the idea of a short-term American military
presence was initially supported, Haitians were quickly dismayed
by their purported liberators once Marine boots hit the ground. It
became apparent that the purpose of this new U.S. occupation was
to disarm the Haitian people, not the Haitian military.82 This
marked yet another damaging hit to Haitian democracy and
instilled the notion that the U.S. presence in Haiti was unwelcome.83 During this period, fearful of yet another military uprising, the Haitian population demanded destruction of the army, a
75. Lois E. Fielding, Taking the Next Step in the Development of New Human
Rights: The Emerging Right of Humanitarian assistance to Restore Democracy, 5
DUKE J. COMP. & INT’L L. 329, 359 (1995).
76. Stephen J. Schnably, The Santiago Commitment as a Call to Democracy in the
U.S.: Evaluating the OAS Role in Haiti, Peru, and Guatemala, 25 U. MIAMI INTER-AM.
L. REV. 393, 421 (1994).
77. Fielding, supra note 75, at 361.
78. Id. at 362.
79. GIRARD, supra note 20, at 28.
80. HALLWARD, supra note 56, at 50.
81. Id. at 51.
82. Id.
83. Id. at 52.
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demand promptly responded fulfilled by Aristide, despite contrary pressures from the U.S.84
Following Aristide’s presidency in 1996, Réne Préval became
the second democratically elected Haitian president.85 During a
five-year uninterrupted term, Préval’s presidency resulted in
record-low unemployment rates, privatized public entities, and a
successfully-implemented national police force (effectively replacing the army).86 Thus, it was no surprise that in 2000, Aristide
was elected President for a second time.87 According to Haiti’s
1987 Constitution, the president is elected to a five-year term by a
nation-wide majority vote—although presidents cannot serve two
consecutive terms, they can serve two non-consecutive terms.88
Some consider the 2000 elections the “most remarkable exercise in
representative democracy in Haiti to date.”89 Despite the absence
of support promised by the OAS and international donors, the
elections attracted unprecedented numbers of registered Haitian
voters who were able to cast their ballots at a surprisingly generous number of polling stations.90
On the other hand, critics claim that the 2000 elections were
“tainted by accusations of corruption, intimidation, and violence
that destroyed [its] legitimacy and incited passionate and longlasting protests.”91 Despite waiting long hours to cast their ballots,
Aristide won sixty-five percent of the votes once again—the
Lavalas’ third presidential landslide election in a row—without
any reported voting irregularities.92 The OAS characterized the
elections as “flawed,” claiming an incorrect methodology had been
used to calculate the vote percentages.93 Additionally, the OAS
argued that eight of the Senate contests should have gone to a
second round of voting—seven of which the Fanmi Lavalas won.
Aristide never revised the election procedures, nor did he respond
to pressure by the OAS.94 The OAS also criticized Haiti’s Provin84. Id. at 54.
85. Stotzky, supra note 63, at 92.
86. Silva, supra note 46, at 59.
87. See id.
88. Constitution of Haiti (1987), available at http://pdba.georgetown.edu/
constitutions/haiti/haiti1987.html.
89. HALLWARD, supra note 56, at 76.
90. Id.
91. Ben J. Scott, Order in the Court: Judicial Stability and Democratic Success in
Haiti, 37 VAND. J. TRANSNAT’L L. 555, 571 (2004).
92. HALLWARD, supra note 56, at 76.
93. Id. at 78.
94. Id. at 79.
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cial Electoral Council (“CEP”), the independent institution that
acts as the exclusive and final arbiter in all electoral matters.95 As
a critical component of the 1987 Constitution, CEP responded
with claims that the OAS was trying to discredit them to achieve
an outcome more favorable to its own organizational interests.96
Post-Earthquake
The January 2010 earthquake further weakened Haiti’s public sector by destroying twenty-seven of twenty-eight national government buildings and killing about twenty percent of Haiti’s civil
service workers.97 Following the earthquake, OAS member states
and permanent-observer states committed to help the Electoral
Observation Mission (“EOM”) oversee Haiti’s general elections,
during which Haiti was expected to elect a president, ten senators,
and eighty nine members of Congress.98 The EOM’s mission was to
help guarantee transparency in the electoral process; unfortunately, the process did not proceed smoothly.99
In the 2010 election, nearly all of the major candidates
expressed apathy over Haiti’s election and called for the election
to be voided.100 In the weeks preceding the elections, “deadly outbursts” erupted in the streets between rival political factions.101
Allegations of fraud and reports that a significant number of voters were turned away from the polling stations mired the elections
legitimacy.102 The candidates expressed their anger through demonstrations against the CEP.103 Even though the CEP acknowledged problems with voter lists, they refused the candidates’
demands to void the election results.104
95. Id.
96. Id.
97. Margaret L. Satterthwaite, Indicators in Crisis: Rights-Based Humanitarian
Indicators in Post-Earthquake Haiti, 43 N.Y.U. J. INT’L L. & POL. 865, 938 (2011).
98. Press Release, Organization of American States, OAS Member States and
Permanent Observers Pledge Assistance to Haiti Electoral Observation Mission (July
29, 2010), available at http://www.oas.org/en/media_center/press_release.asp?sCodigo
=E-284/10.
99. See id.
100. Jonathan M. Katz, Major Candidates in Haiti Call for Halt to Election,
CHARLESTON GAZETTE, November 29, 2010, available at 2010 WLNR 23811385.
101. Blake Schmidt, U.N. Urges Calm Following Election Fraud Claims Lead
Haitians to Seek Voiding Sunday Vote, WASHINGTON TIMES, November 30, 2010,
available at 2010 WLNR 23796529.
102. Id.
103. Katz, supra note 100.
104. See id.
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125
UN soldiers helped Haitian police guard polling stations.105
The OAS claimed that as many as ten percent of voters were
denied voter IDs prior to the election. Curiously, the OAS failed to
give a statement following the vote.106 Calls for a new election
increased, especially due to the exclusion of the Fanmi Lavalas
party.107 Fanmi Lavalas was also excluded from the two-round
Senate elections in April and June 2009 due to their failure to file
proper paperwork—a charge its leaders denied.108 In November
2009, Fanmi Lavalas was excluded for failing to submit an original party authorization for the April 2009 elections.109 The exclusion of Famni Lavalas and other candidates contributed to a
general lack of credibility in the election and its results, ultimately leading to a widespread boycott of the elections by the Haitian populace, including the leaders of Fanmi Lavalas.110 The
party’s attorneys provided documentation claiming the reasons
provided for the ban was mere pretext, but the party was nonetheless barred from participating in the election.111
Canadian Ambassador Gilles Rivard expressed concern about
the elections after learning the CEP reneged on a pledge to reconsider Lavalas’ exclusion. He asked, “[i]f this is the kind of partnership we have with the CEP going into the elections, what kind of
transparency can we expect from them as the process unfolds?”112
The UN also urged local Haitian officials to provide justifications
for excluding 17 political groups from participating in the legislative elections.113 Despite accusations, criticism, and questioning,
the issue remains largely unaddressed by the Haitian government
to this day.
Not only was the candidate selection process questionable and
somewhat mysterious, voter turnout was, perhaps understandably, quite low. Fewer than twenty-three percent of Haiti’s registered voters had their vote counted in either of the two
105. Schmidt, supra note 101.
106. Id.
107. Id.
108. Id.; Kevin Edmonds & Roger Annis, With Friends Like These . . . CARICOM
and Haiti, CARIBBEAN360 (Nov. 15, 2010), available at http://www.caribbean360.com/
opinion/49393.html#axzz2Pp9SMllc.
109. Edmonds, supra note 108.
110. Id.
111. Id.
112. Dan Coughlin & Kim Ives, Haiti’s Rigged Election, THE NATION, June 16,
2010, available at http://www.agenceglobal.com/article.asp?id=2582.
113. UN Peacekeepers React to Election Ban in Haiti, SUN-SENTINEL, Nov. 28, 2009,
available at 2009 WL 24065761.
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presidential rounds, the lowest electoral participation rate in the
hemisphere since 1945, according to the Washington-based Center
for Economic and Policy Research.114 The OAS sent a team to
review the first-round results and determined that fraud and
irregularities significantly affected the outcome of the elections.115
Days after the first-round presidential election results were
announced—which placed Mirlande Manigat and Celestin headto-head—thousands of protestors reacted violently, accusing the
ruling party of illegally registering the votes of Haitians killed in
the earthquake.116 Protestors also accused the Unity party, current president Preval’s own party, of rigging the vote for their
favored candidate, Jude Celestin.117 Furious Haitians set fire to
Unity party’s headquarters, burned tires, torched vehicles, and set
up roadblocks in Port-au-Prince.118 UN forces intervened using
flash grenades, tear gas and rubber bullets to quell the protests in
the streets of Port-au-Prince after the presidential results were
announced.119 The U.S. embassy agreed that the vote-counts were
inconsistent and supported a review of the preliminary round.120
After a week of grueling violence, the CEP agreed to recount the
disputed votes.121 Although the CEP and OAS are involved in regulating the voting process, voters most likely refrained from taking part in the elections because they were either fearful of
violence, or simply apathetic towards the future leaders of their
country. Despite foreign aid organizations administering and
reviewing the elections, Haitian leaders failed to engage in efforts
to restore voter confidence in future free and fair elections.122
114. Id. See also CEPR Examines OAS Report on Haiti’s Election, Finds It
“Inconclusive, Statistically Flawed, and Indefensible, Center for Economic Policy and
Research (Jan. 11, 2011), available at http://www.cepr.net/index.php/press-releases/
press-releases/cepr-examines-oas-report-on-haitis-election-finds-it-qinconclusivestatistically-flawed-and-indefensibleq.
115. U.S. Dept. of State. Press Release, supra note 26, at 7.
116. Id.
117. NBC Nightly News: Violence Erupts in Haiti After Elections (NBC television
broadcast Dec. 8, 2010) (available at 2010 WLNR 24392048).
118. Id.
119. Id.
120. Fraud Claims Over Haiti’s Presidential Run-Off, EURONEWS (Dec. 8, 2010,
11:15PM), http://www.euronews.net/2010/12/08/fraud-claims-over-haiti-spresidential-run-off/.
121. Ralph Henry, Haiti: Envoys and Poll Officials try to Defuse Tensions, INTER
PRESS SERVICE (Dec. 13, 2010), http://www.ipsnews.net/2010/12/haiti-envoys-and-pollofficials-try-to-defU.S.e-tensions/.
122. THE POLITICAL ECONOMY OF REFORM FAILURE, 294-97 (Mats Lundhal &
Micheal L. Wyzan eds., 2005), available at http://www.untag-smd.ac.id/files/
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Inter-American Democratic Charter & OAS Intervention
and the Limits on Restoring Democracy
The OAS remains an integral resource for Haiti’s survival,
and may function as a possible means for establishing democracy,
even though it is not the Organization’s primary role. The OAS,
the oldest organization of its type in the world, boasts a reputation
as possibly “the best-organized, and most effective of all the
regional organizations of its type.”123 Despite its legacy, the OAS
constantly faces criticism: on the one hand, the OAS has been criticized as too involved, and on the other, it has been criticized as
“lethargic in the face of a grave threat.”124
The OAS declares that, “representative democracy is an indispensable condition for the stability, peace and development of the
region,” and thus upholding democracy is one of its essential
roles.125 Adopted in 1991, the OAS’s Santiago Resolution further
stressed the importance of democracy in its member states,
instructing the Security General to call for an immediate meeting
upon any irregular interruption of the democratic political institutional process.126 Policy trends have encouraged democracy as a
right and the UN’s election monitoring bolsters this idea of preserving the right to democracy.127
Although its organizational mission is a product of a memberstate agreement, the OAS is often forced into a superficial
approach for problem solving between nations. For instance, the
OAS’s charter states that, “[a] member of the Organization whose
democratically constituted government has been overthrown by
force may be suspended” by the OAS.128 While this is essentially
an anti-coup clause in that it prohibits the unconstitutional
replacement of one democratic regime by another, the Charter is
Perpustakaan_Digital_2/POLITICAL%20ECONOMY%20The%20Political%20
Economy%20of%20Reform%20Failure.pdf.
123. Jeffery M. Brown, Benevolent Assistance or Bureaucratic Burden: Promoting
Effective Haitian Reconstruction, Self-Governance, and Human Rights Under the
Right to Development, 6 INTERCULTURAL HUM. RTS. L. REV. 209, 230 (2010).
124. Ronald Barliant, The OAS Peace and Security System, 21 STAN. L. REV. 1156,
1156 (1969).
125. Charter of the Organization of American States, available at: http://www.
oas.org/dil/treaties_A-41_Charter_of_the_Organization_of_American_States.htm#
ch1.
126. Fielding, supra note 75, at 349.
127. Id. at 337.
128. Protocol of Amendments to the Charter of the Organization of American
States (A-56), “Protocol of Washington”, (Dec. 14, 1992), available at http://www
.oas.org/dil/treaties_A-56_Protocol_of_Washington.htm.
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silent about post-revolutionary circumstances where a new
democracy is developing or situations where an incumbent leader
takes steps to weaken democracy.129
This approach has often been criticized, although such criticism generally fails to contextualize the nature of the problems
the OAS is attempting to resolve. A dispute between the Dominican Republic and Haiti led to the Dominican Republic mobilizing
its military for an invasion, Venezuela promising military support, and the U.S. sending a Navy task force with a Marine landing party; all were anxious to topple Duvalier’s regime.130 The
OAS, on the other hand, responded by sending a five-member
committee to Port-au-Prince to investigate and mediate the dispute, and excluded itself from the Duvalier government entirely.131
Acting as a mediator, the OAS’ presence “inhibited the aggressive
tendencies of both parties,” providing both sides the room necessary to make concessions.132 The OAS was criticized for its role in
handling the situation because it made no effort to reform the Haitian government or eliminate the root of the tension between the
two countries.133 However, the nature of the nonintervention was
crucial in gaining the approval of the regional powers, including
Brazil, Chile, and Mexico, and the crisis passed without violence.134 While the Council adhered to Article 7, which calls for
“pacifying action,” this course of action has been recognized for its
preservation of the status quo; however, OAS intervention alone is
incapable of establishing democracy in Haiti.135
With new international law developments supporting humanitarian efforts to restore democracy, the UN has also taken an
important role in Haiti’s survival. Under Article 39 of the UN
Charter, a threat to peace and security is present when a democratic government is overthrown.136 While humanitarian assistance not involving force is supported in resolutions and
declarations of the UN and of regional organizations, use of force
is advocated in circumstances involving serious human rights
atrocities.137 For example, in September 1994, the UN Security
129. David Landau, The Importance of Constitution-Making, 89 DENV. U. L. REV.
611, 620 (2012).
130. Barliant, supra note 124, at 1184.
131. Id.
132. Id.
133. Id.
134. Id. at 1185.
135. Id. at 1203.
136. Fielding, supra note 75, at 329.
137. Id. at 330.
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Council Resolution 940 authorized a U.S.-led military force to oust
the military dictatorship and return Aristide to power.138
While the UN and the international community recognize the
need to restore democracy in Haiti, the OAS and Haitian officials
must actively work together. Haiti could improve its current position by imposing OAS involvement per Article 20, which states:
“In the event of an unconstitutional alteration of the constitutional regime that seriously impairs the democratic order
in a member state, any member state or the Secretary General may request the immediate convocation of the Permanent Council to undertake a collective assessment of the
situation and take such decisions as it deems
appropriate.”139
As for the meaning of an “unconstitutional alteration,” the
election concerns witnessed in Haiti likely fall into the category
because when voter turnout is low and the result is met with such
violence, there is presumably a disconnect between the people and
the democratic process.140
Furthermore, although mechanisms exist to protect international democracy, such norms are non-binding forms of “soft
law.”141 For example, although the Inter-American Democratic
Charter addresses issues dealing with elections, it is not binding
on a country.142 Specifically, the Inter-American Democratic Charter explicitly provides for a “right to democracy,” and the preamble
states that “cooperation between American states requires the
political organization of those states based on the effective exercise of representative democracy.”143 The Charter “also creates certain instruments meant to help the OAS in assessing and
responding to breakdowns in democracy.”144 Yet, because the
Inter-American Democratic Charter is not afforded the formal sta138. Id. at 329.
139. Inter-American Democratic Charter, available at http://www.oas.org/en/
democratic-charter/pdf/demcharter_en.pdf.
140. Id.; see also Beverly Bell, The Poor Always Pay: The Electoral Crisis in Haiti,
HUFF POST WORLD, 2010, http://www.huffingtonpost.com/beverly-bell/the-pooralways-pay-the-e_b_795876.html.
141. See generally Kal Raustiala, Form and Substance in International Agreements,
99 A.J.I.L. 581 (2005). “Soft-law” refers to those documents and forms of quasilegislation that do not have any legal impact in the traditional sense but still serve as
guiding principles or foundations on which normative relations can be built. Most
declarations of the United Nations fall under this umbrella, as do other action plans
and codes of conduct originating within similar multinational organizing bodies.
142. Inter-American Democratic Charter, supra note 139, at art. 23-25.
143. Id. at preamble, art. 1.
144. Landau, supra note 129, at 619.
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tus of a treaty, the Inter-American Democratic Charter does not
represent “binding international norms” and is effectively a form
of “international soft law” carrying questionable efficacy.145
OAS Responses in Venezuela and Haiti
The Inter-American Court and its sister institution, the InterAmerican Commission on Human Rights, both hold responsibility
for protecting human rights in the Western Hemisphere.146 When
the OAS adopted the American Convention on Human Rights in
1969, the Inter-American Court was created, ultimately beginning
operations in 1979.147 The Inter-American Court acts as a last
resort for human rights abuse complaints that are inadequately
addressed by domestic remedies.148
Geographically, the Inter-American Court has jurisdiction
over both Haiti and Venezuela, both OAS members who have ratified the American Convention.149 While the Inter-American
Court’s jurisdiction is limited by subject matter, the Court can
hear allegations of state violations of the binding human rights
instruments of the OAS and violations of the American Convention.150 The OAS has relatively under-utilized judgment enforcement powers, although the General Assembly of the OAS has
discretionary authority to sanction States refusing to comply with
orders of the Court.151 For example, after the military junta took
over the government and ousted President Aristide, the General
Assembly instituted broad-based economic sanctions on Haiti.152
Presently, there is substantial pressure to comply with the Court,
which is outside of formal OAS established powers.153
Countries of the western hemisphere took a great step forward in international democratic development by adopting the
Inter-American Democratic Charter in 2001.154 The Democratic
Charter not only expressly defines democracy, but also provides
145. Id.
146. Lea Shaver, The Inter-American Human Rights System: An Effective
Institution for Regional Rights Protection?, 9 WASH. U. GLOBAL STUD. L. REV. 639, 640
(2010).
147. Id. at 640-41.
148. Id. at 647.
149. Id. at 651.
150. Id.
151. Id. at 664.
152. Shaver, supra note 146, at 664.
153. Id.
154. Enrique Lagos & Timothy D. Rudy, In Defense of Democracy, 35 U. MIAMI
INTER-AM. L. REV. 283, 308 (2004).
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the “regional international intergovernmental organizations with
additional legal and diplomatic tools to thwart a coup d’état in a
member state, or reverse unconstitutional interruptions of the
democratic order or unconstitutional alterations of a constitutional regime.”155 Despite the fact that all OAS member states,
including Haiti and Venezuela, nominally adhere to the meaning
of “democracy,” political, social and economic pressures have led to
what observers call “democratic fatigue,”156 the interesting phenomenon wherein the constant barrage of elections and candidate
evaluations causes the average voter to “tune-out” the democratic
processes requiring their attention.
For instance, in May 1992, the Venezuelan General Assembly
passed a resolution in response to an attempt to overthrow the
democratic Venezuelan government.157 More recently, the OAS
forcefully accused Venezuela’s government of “human-rights
abuses, political repression, and eroding the separation of powers
among government branches in the oil-rich country.”158 The 1992
Venezuelan elections elicited attention and speculation from the
OAS and the Inter-American Court. Specifically, Leopoldo López,
a Venezuelan economist and politician, was among over 300 Venezuelan politicians declared “inhabilitados” and barred from running in the November 2008 elections.159 The inhabilitados were
disqualified from seeking public office until 2014, with the government alleging that they were “guilty of corruption in their past.”160
Eighty percent of the barred politicians were opposition politicos,
most of whom, like López, were neither formally charged nor convicted of any crime.161 The Inter-American Court of Human Rights
commenced its investigation into the disqualifications from the
Venezuelan elections and heard testimony from López concerning
his own disqualification in March 2011.162 López expressed relief
at the opportunity to speak with neutral judges, stating that “Venezuela is obligated to comply with human rights treaties and con155. Id. at 309.
156. Id.
157. Fielding, supra note 75, at 350.
158. Paulo Prado, OAS Report Chastises Venezuela, WALL ST. J., Feb. 25, 2010,
available at http://online.wsj.com/article/SB10001424052748703510204575085801
117383696.html.
159. Gupta, supra note 12.
160. Id.
161. Id.
162. Leopoldo López, Venezuelan Democracy Gets its Day in Court, THE
HUFFINGTON POST (Mar. 1, 2011, 5:31PM), http://www.huffingtonpost.com/leopoldolopez/venezuelan-democracy-gets_b_829997.html.
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ventions which it has signed and ratified.”163
While the Court ruled in favor of López and the other disqualified political candidates, forcing the Venezuelan government
to comply with the ruling pursuant its Constitution, the Venezuelan government remains reluctant and resistant.164 In fact, the
Venezuelan government decided to override its comptroller and
the Supreme Court decision, issuing a ruling ordering Venezuelan
government to lift the ban on López and allow him to run in the
2012 elections.165
Despite President Hugo Chávez’s death in March 2013, the
latent prospect of change in Venezuelan politics and society is
uncertain. Although President Hugo Chávez dominated the presidency in Venezuela since 1999 and his death could provide a
major change for the political landscape of Venezuela, the likelihood of such change is difficult to determine, as the OAS has so far
been reluctant to intervene in the affairs of that nation, but the
subsequent election of Nicolás Maduro was much closer than
anticipated and was marked by the significant participation of
Venezuelan ex-pats casting votes for the opposition candidate.166
In fact, the OAS’ response has consistently been characterized
as “tepid,” as Chávez used his lawfully elected position to undermine other democratic institutions by, for example, closing and
intimidating hostile media and weakening and packing the country’s Congress, Supreme Court, and control institutions like the
Ombudsman.167 While the power to intervene seems to be available to the OAS in the face of such democratically subversive
actions, it has done virtually nothing because “in the absence of an
unconstitutional interruption in democracy that might trigger the
suspension clause, it is able to monitor and facilitate dialogue only
at the invitation of the Venezuelan state.”168
163. Id.
164. Tamara Pearson, Venezuelan Opposition Politician Barred for Breaking the
Law, Not for Politics, VENEZUELANALYSIS (Oct. 19, 2011), http://venezuelanalysis.com/
news/6566.
165. Id.
166. Adrián Bonilla, OP-ED: Stability Will Mark Post-Chávez Venezuela, INTER
PRESS SERVICE NEWS AGENCY (Mar. 15, 2013), http://www.ipsnews.net/2013/03/op-edstability-will-mark-post-chavez-venezuela/. See also William Neuman, Venezuela
Gives Chávez Protégé Narrow Victory, The New York Times (April 14, 2013), http://
www.nytimes.com/2013/04/15/world/americas/venezuelans-vote-for-successor-tochavez.html?pagewanted=all.
167. Landau, supra note 129, at 620.
168. Id.
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IV. FAILED STATE
The term “failed state” emerged in academic discourse in 1992
to describe nations without effective government that are unable
to perform domestic functions and meet obligations under international law.169 Similarly, international law labels states with inoperative governments whose infrastructure has broken down
considerably as “failed states.”170 These states often have little or
no control over violence, cannot create peace or stability for the
national populations, and cannot ensure economic growth or reasonable distribution of social goods.171 These failures also result in
the decay of physical infrastructure and declining standards of living, often leading to internal armed conflict.172
State failure has also been more loosely described as a state’s
inability to provide “political goods to its citizens and to the international community.”173 The term also suggests that rebuilding
effective structures is incredibly difficult, almost infeasible.174
Contemporary examples of failed states include Somalia and
Afghanistan;175 Somalia has not had a government for more than
a decade, and Afghanistan’s government controls only parts of
their territory.176 The lack of an effective government leads to a
series of challenges, including “disharmony between communities,
incapability of controlling borders and territories, ethnic and
other inter-communal hostility, predatory behavior by ruling classes, growth of criminal violence, flawed institutions, absence of
democratic debate, deterioration of infrastructures, privatization
of health and schooling systems, rise in corruption, and decline in
income levels.”177
While there is some debate as to what countries qualify as
“failed states,” nations like “Haiti or Afghanistan, which have historically had difficulty supporting a fully functioning government
because of tribal rivalries and endemic civil wars,” are often seen
as paradigmatic of this classification.178 Haiti’s current condition
169. John Yoo, Fixing Failed States, 99 Calif. L. Rev. 95, 100 (2011).
170. Chiara Giogetti, Why Should International Law Be Concerned About State
Failure?, 16 ILSA J. INT’L & COMP. L. 469, 473-4 (2010).
171. Rose E. Brooks, Failed States, or The State as Failure?, 72 U. CHI. L. REV.
1159, 1160 (2005).
172. Yoo, supra note 169, at 100.
173. Giogetti, supra note 170, at 473.
174. Brooks, supra note 171, at 1163-4.
175. Id. at 1161.
176. Giogetti, supra note 170, at 474.
177. Id. at 476.
178. Yoo, supra note 169, at 101.
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meets any of these definitions of a “failed state.” It is incapable of
performing its obligations due to a collapse of the state’s structures, resulting in a powerlessness of governmental authorities to
perform their functions such as enforcing the rule of law, maintaining economic and structural infrastructures, and supplying
health and education services.179 For example, although public
education is nominally “free,” the cost is still too high for many
Haitian families who must also pay for uniforms, textbooks, and
supplies.180 Furthermore, following the January 2010 earthquake,
most schools in the greater Port-au-Prince area ceased
operating.181
While Haiti largely fits the above definition of a failed state
and sits on the World Bank’s “fragile states” list—as well as the
Fund for Peace’s worst functioning states list—it seems inaccurate to label Haiti as a “failed state.”182 The past tense “failed” suggests finality, indicating that the state has little to no chance of
recovery. The term failing state is probably more appropriate.
Whether failed or failing, these states present a major challenge
to the international community.183 The undesirable effects of ineffective democratic government in Haiti present several concerns
for the U.S. For instance, the U.S. faces an influx of Haitian seeking to immigrate, creating a number of domestic policy issues
involving accommodation and treatment of Haitian immigrants
vis-à-vis other immigrant groups.184 Moreover, the UN Secretary
General observed that, “if States are fragile, the peoples of the
world will not enjoy the security, development and justice that are
their right.”185
Many suggest that the UN and other international bodies
must “foster new democracies by offering formal oversight to
ensure the proper and effective administration of new governments.”186 Furthermore, if the key to recovery for Haiti is democratization, “the nation must create a system of legitimate, inclusive,
informed elections.”187 However, “naively pressuring states to hold
179. Giogetti, supra note 170, at 473.
180. State Department Documents, Haiti 2010 WLNR 21650783 pg. 3.
181. Id.
182. Yoo, supra note 169, at 102-103.
183. Id. at 104.
184. Ben J. Scott, Order in the Court: Judicial Stability and Democratic Success in
Haiti, 37 VAND. J. TRANSNAT’L L. 555, 564 (2004).
185. Yoo, supra note 169, at 104.
186. Scott, supra note 185, at 567.
187. Id. at 568.
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instant elections can lead to disastrous results.”188 While Haiti’s
need for international support is necessary to create stability and
democracy, Haiti must nonetheless learn self-sufficiency.189 Thus,
an electoral fix may not be the first step; perhaps other institutions are necessary for democracy to take root, such as free-market economic conditions, independent civil organizations, and a
functioning local government system.
V. CONCLUSION: HAITI’S FUTURE
Economists speculate that all of the money spent on government and infrastructure “will ultimately mean little to the country’s development if Haiti is unable to create jobs and become
more business-friendly.”190 Today, approximately four out of five
Haitians live on less than $2 a day, about half of the population is
illiterate, and about only one out of five Haitians is employed.191
While the earthquake left more than 300,000 dead and over 1.5
million homeless, poverty and illiteracy were widespread even
before the disaster. It is no small wonder that Haiti ranked
twelfth on the Fund for Peace’s list of worst functioning states.192
In order for Haiti to become an emergent country, or recover
from its current state of failure, new schools, new roads, new
ports, new police, and new leadership are necessary. Because
failed states usually breed violence, this task is a costly one. Haiti
has sporadically allowed—or more accurately, been unable to do
anything about—armed bands roaming throughout the country,
leading to famines and violence.193 Despite the demand for humanitarian aid, the absence of effective government thwarts attempts
to address the humanitarian crisis.194 Although the UN authorizes
intervention to help distribute humanitarian aid, there has been
little effect.195 Due to the lack of structure of failed states, compliance with international law is cumbersome, posing a possible
threat to other nations in the region.196 The gravity of the threat is
188. Id. at 569.
189. Id. at 567.
190. Jose de Cordoba & David Luhnow, Haiti Readies Request for $11.5 Billion—Government Will Present Donors With Plan To Emerge From Decades as Semi-Failed
State, WALL ST. J. (Mar. 31, 2010), http://online.wsj.com/article/SB1000142405270230
3601504575154172634674414.html.
191. Id.
192. Yoo, supra note 169, at 103.
193. Id.
194. Id. at 107.
195. Id.
196. Id. at 110.
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unpredictable—one need only look to the sea-faring pirates or
extremist jihadis spawned from Somalia’s black hole of government institutions—but as a matter of international law, the
absence of a central government makes compliance with international treaties and agreements difficult—even impossible.197
It is in the interest of the international community to remedy
the current state of Haitian government. The first step would be
decentralization to break down the “militaristic foreign policies.”198
Decentralization usually implies an increase in the number of
nations that support policies of free trade and a reduction in force
to resolve international disputes.199 Rules must be implemented to
promote free trade and to encourage the adoption of international
legal norms.200 Instead of looking to “macro” issues dealing with
international law and its involvement in failed states, the “micro”
issues should play a primary role in recovery.201 “Micro” issues
analyze how nations should intervene and restore the function
and sovereignty of failed states.202 At a micro level, international
law can restore government authority in failed states like Haiti by
insisting on “power-sharing agreements” between conflicting
groups in the country.203
Despite aid from powerful and wealthy foreign donors like the
U.S., influential international organizations like the UN and the
OAS, and even support from neighbor states like Venezuela, the
foreign assistance model has proved unsuccessful in Haiti.204 A
likely explanation for this is lack of donor coordination, donor
fatigue, and a weak Haitian central government unable to properly address its needs and obligations.205
The OAS must continue its election oversight efforts in Haiti
to ensure the country conducts free and fair elections. In Venezuela’s case, party leaders and/or other member states should
bring claims to the Inter-American Court regarding its election
procedures. Although the Venezuelan government is attempting
to disregard the 1992 decision and the Court’s decisions may have
little internal influence within Venezuela, it is significant that the
197.
198.
199.
200.
201.
202.
203.
204.
205.
Id.
Yoo, supra note 169, at 137.
Id.
Id.
Id.
Id.
Id. at 150.
Brown, supra note 123, at 216.
Id. at 218.
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international community has condemned Venezuela’s democracysuppressing tactics. Haiti’s election problems are far more complex than those in Venezuela; for this reason, Haiti’s “failed state”
status requires a different approach than merely appealing to the
IACHR. However, it should be impressed upon Haitians to use
judicial means for addressing human rights abuses, evidence of
fraud, or “unconstitutional alterations,” rather than resorting to
violence or repression. By filing claims before the IACHR, the
international community can gain further insight and awareness
into the plight of Haitians in a post-earthquake state. When conflicts are brought to the judiciary, OAS’s ability to mediate and
conduct effective meetings and solutions is facilitated.
Although the U.S. has emphasized restraint, it has failed to
institute a system for accountability of government or military
officials. One approach is to hold trials of the military to “help
institutionalize constitutional government” and, “show that a constitutional government can in fact respond meaningfully to deeply
felt popular imperatives.”206 A system of accountability would shed
light on the main figures of authority on the nation, and with the
help of the OAS and the UN, free and fair elections could be possible. Such elections would be the first step in Haiti’s advancement
from a “failed state” to an emerging developing country, and
would help restore confidence in the country and the international
community.
206. Schnably, supra note 17, at 538.
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